RAJINDER KAUR Vs. BAKHSHISH SINGH

JUDGEMENT

(1.) RAJINDER Kaur petitioner has filed this revision against trial Court's order whereby her petition for staying the operation of the divorce decree is dismissed.

(2.) BRIEF facts of the case are that the petitioner was married to Bakhshish Singh on June 26, 1990. On August 18, 1994, Bakhshish Singh obtained a divorce decree against her. On September 15, 1994, Bakhshish Singh died. On October 24, 1994, when the petitioner approached her husband's department for release of retiral benefits to her. She was apprised of this fact that her husband has already obtained a divorce decree against her on August 18, 1994. Thereafter within three days i. e. on October 27, 1994, she filed a petition under Order 9 Rule 13 CPC for setting a side that ex-parte decree. She also filed a petition under Order 39 Rules 1 and 2 CPC stating that mother of Bakhshish Singh is also trying that these retiral benefits be released in her favour, and therefore, the department be restrained from releasing these retiral benefits to Bakhshish Singh's mother.

(3.) THE respondent's learned counsel vehemently argued that the petition is rightly dismissed by the trial Court because it suffers from suppression of material facts also. The petitioner has not approached the Court with clean hands. Earlier on June 15, 1993, the petitioner as well as Bakhshish Singh filed a petition for divorce on mutual consent. They also filed their affidavits in support of the said petition, but later on the petitioner-wife contended that first of all her dowry articles be returned by the husband, then only she will get divorce by mutual consent. On September 27, 1993, as the dowry articles were not returned to her, she made such a declaration and the petition was dismissed on that very day. On December 1, 1993, Bakhshish Singh filed divorce petition on the grounds of cruelty, vulnerable disease with which she is suffering and desertion. According to him, the wife never cohabited with Bakhshish Singh and deserted him. She has taken a job and is serving as a teacher. The husband died on September 15, 1994. Cremation was held on September 16, 1994, and Bhog ceremony was performed on September 25, 1994. Though the petitioner has alleged that she attended these ceremonies but had it been true then she would have come to know about the death of Bakshish Singh much earlier than October 24, 1994, when according to her, she came to know about the death of her husband from the department where she had gone to get the retiral benefits released in her favour. Relying on Kamla Kumar Thapar v. Vinod Kumar Thapar, 1996 (2)113 P. L. R. 64 he fervently argued that power of the appellate Court to interfere with an order passed by the trial Court under Order 39 Rules 1 and 2 CPC is not unlimited. The appellate Court cannot upset an order passed by the trial Court without holding that the trial Court has erred in recording findings on the issues of prima facie case, balance of convenience and irreparable loss or without holding that the conclusions recorded by the trial Court on these issues are perverse or against the settled principles of law.